The Secretary, Department of External Affairs has forwarded the following memorandum for advice:

I am forwarding herewith copies of correspondence on the subject of the ownership of certain islands and reefs off the coast of Australia.

From an examination of the position, it appears that these islands and reefs may be divided into the following groups:

1. Those forming parts of the States of Queensland and New South Wales;
2. Those lying outside the eastern boundary of these States and to the west of the 158th degree of east longitude, which may be regarded as the western boundary of French Territories;
3. Certain reefs lying between latitudes 8 and 12 degrees south and longitudes 141 and 148 degrees east (being adjacent to Papua).

It is desired to bring the islands and reefs falling within groups (2) (including Middleton and Elizabeth Reefs) and (3), together with certain islands forming part of the State of New South Wales, under the control of the Commonwealth.

I should be glad if you would give consideration to the matter, and let me have your observations, with particular reference as to the most suitable means of bringing about this result.

You will see from the enclosed correspondence that the matter is not only one of constitutional law but also of international law as it is the desire of the Commonwealth Government to establish definitely British sovereignty over all of the islands and reefs in question.

I am asked to advise as to the most suitable means of bringing certain islands and reefs off the eastern coast of Australia under the control of the Commonwealth.

The islands and reefs may be classified as follows:

1. Islands and reefs lying outside the eastern boundary of Queensland and New South Wales and to the west of the 158th degree of east longitude (including Middleton and Elizabeth Reefs).
2. Certain reefs lying between latitudes 8 and 12 degrees south and longitudes 141 and 158 degrees east (being adjacent to Papua).
3. Certain islands forming part of New South Wales.

Reference is made in the memorandum for advice to ‘islands’ and ‘reefs’. A ‘reef’ is defined in the Shorter Oxford English Dictionary as ‘a narrow ridge or chain of rocks, shingle, or sand, lying at or near the surface of the water’, whilst an ‘island’ is described as a ‘piece of land completely surrounded by water’. As the distinction between an island and a reef becomes material for some of the purposes of this opinion, I propose to use both terms.

Before considering each of these classes of islands and reefs in detail, it seems desirable to state some of the principles governing the placing of territory under the control of the Commonwealth.

In the first place, a distinction is to be drawn between–

1. islands and reefs at present forming part of the Commonwealth by virtue of their being included within the boundaries of a State as delimited by statutes or by letters patent or orders-in-council, and
2. those islands and reefs which, whilst being overseas possessions of His Majesty, do not form part of the Commonwealth.

The question of the control of islands and reefs not at present under British sovereignty raises problems of international law but once they are brought under that sovereignty they fall to be considered under heading (ii) in the past preceding paragraph. As will be seen later, there may be some dispute as to sovereignty over Mellish, Elizabeth and Middleton Reefs.

In the case of islands and reefs referred to under heading (i), constitutional questions arise inasmuch as the transfer of territories from a State to the Commonwealth
involves the surrender of territory under section 111 of the Commonwealth Constitution. Section 111 is as follows:

The Parliament of a State may surrender any part of the State to the Commonwealth; and upon such surrender, and the acceptance thereof by the Commonwealth, such part of the State shall become subject to the exclusive jurisdiction of the Commonwealth.

The Commonwealth and the States concerned could, therefore, enter into agreements for the transfer of islands forming part of the State and upon such transfer the Commonwealth could enact legislation under section 122 of the Constitution providing for the government of the islands so surrendered. The Northern Territory Acceptance Act 1910 and the Seat of Government Acceptance Act 1909 are examples of legislation providing for the government of territory surrendered by States to the Commonwealth.

Questions of policy arise as to the form of government for territories surrendered by a State. This is a matter for the Department which would ultimately be responsible for the administration of the territories. In the case of islands or reefs adjacent to a Territory of the Commonwealth, the matter could be provided for by attaching them to that Territory and providing for their government as integral portions of that Territory. An example of this is the Ashmore and Cartier Islands Acceptance Act 1933 by which the Ashmore and Cartier Islands were attached to the Northern Territory.

Islands and reefs coming under heading (ii) above could be brought under the control of the Commonwealth either by an Order-in-Council under the Colonial Boundaries Act, 1895 or by a prerogative Order-in-Council placing the territory under the authority of the Commonwealth in terms of section 122 of the Constitution. The latter Order would come into operation after appropriate legislation accepting the territory had been passed by the Government concerned. The first method is inconvenient by reason of the fact that the boundaries of the Commonwealth as such have not been defined in the Constitution or other Commonwealth instrument. The second method is that which has been used in several cases heretofore. In this connexion, reference might be made to the Papua Act 1905, Norfolk Island Act 1913, Ashmore and Cartier Islands Acceptance Act 1933 and the Australian Antarctic Territory Acceptance Act 1933. The British Settlements Act, 1887 (Imperial) would also be available in the case of territories acquired by settlement but, in my view, the more convenient method of effecting the transfer of territory consisting of uninhabited islands and reefs is by prerogative Order-in-Council.

Consideration will now be given to each of the several classes of islands and reefs mentioned above.

1. Islands and reefs between the eastern boundaries of Queensland and New South Wales and the 158th degree of east longitude.

The islands and reefs between these boundaries and the 158th degree of east longitude which are under British sovereignty could be placed under the control of the Commonwealth by prerogative Order-in-Council. The commencement of the Order could be postponed pending the settlement of the question whether the territory so transferred should be administered as part of the existing Commonwealth territories or by Queensland or New South Wales by Ordinance.

Reference has already been made to Mellish, Elizabeth and Middleton Reefs. It is stated in a Memorandum as to the views of the Chief Hydrographer to the Admiralty on certain unoccupied Islands that in 1934 these Reefs were not shown under any definite sovereignty. The ownership of these Reefs should, I think, be determined before action is taken to bring under Commonwealth control islands and reefs to the west of the 158th degree of east longitude.

2. Reefs adjacent to Papua.

With regard to the reefs mentioned in sub-paragraph (3) of the second paragraph of the memorandum for advice, I expressed the view in Opinion No. 94 of 1935,⁽¹⁾ that these ‘reefs’ are not included within the term ‘islands’ in the phrase ‘islands lying between the 8th and 12th parallels ... and the 141st and 155th degrees ...’ contained in the Letters Patent dated the 8th June, 1888. It is also desired to include Pocklington Reef which lies to the south east of Papua.

These reefs could be brought within the jurisdiction of the Territory of Papua by further Letters Patent defining the word ‘islands’ in the phrase set out above as including reefs and by specifically mentioning Pocklington Reef. Although the question of the administration of these reefs is one of policy, it seems desirable that they should be annexed to Papua. Upon the issue of the Letters Patent, the Papua Act would also require to be amended.

3. Certain islands forming part of New South Wales.

The Premier of New South Wales in a letter dated the 24th January, 1938, sets out the islands lying off the coast of New South Wales (excluding reefs, shoals, rocks, etc.) and forming part of the State which he considers should be retained by the State. The Premier considers that all other islands forming part of the State could be acquired by the Commonwealth under section 111 of the Commonwealth Constitution.

I agree with the view of the Premier. The surrender would require to be effected by agreement between the Commonwealth and New South Wales and confirmed and approved by the respective Parliaments of the Commonwealth and the State of New South Wales.

With regard to the wording of any Orders-in-Council to give effect to the foregoing, it seems desirable that a decision should first be reached as to the means by which the islands and reefs are to be administered.

[Vol. 32, p. 50]

(1) See Opinion No. 1583.